WASHINGTON — The U.S. Supreme Court has the uncommon opportunity to please both pro-life and pro-choice advocates at the same time.
The justices struggled with the meaning of a federal law barring discrimination against pregnant workers during oral arguments Dec. 3 in a case that has united representatives of both sides of the abortion debate. The protection of mothers in the workplace has brought together at least this time those who disagree on abortion rights, including such pro-life organizations as the Americans United for Life (AUL) and Bethany Christian Services with such pro-choice advocates as the ACLU, National Education Association and the Leadership Conference on Civil and Human Rights.
These organizations urged the justices in various friend-of-the-court briefs to find that United Parcel Service (UPS) violated a 1978 law, the Pregnancy Discrimination Act (PDA), in its refusal to allow Peggy Young to take on lighter duty during her pregnancy. Young sued UPS in response to a policy by the package delivery company that resulted in her taking unpaid leave and losing her medical coverage while pregnant.
Supporters of Young’s position contended in pre-argument statements for the rights of pregnant employees.
“Being pro-life means standing both with unborn children and with their mothers,” said Russell Moore, president of the Ethics & Religious Liberty Commission. “Pregnant women should not have to decide between loving their babies, caring for their health and making a living.”
Charmaine Yoest, AUL’s president, said, “Pro-life and pro-abortion advocates agree: This case is about protecting pregnant mothers from employment discrimination. Women should not suffer physical hardship at work or lose their jobs because they are having a baby. Most especially, [they] should not be refused the same accommodation offered others with similar work challenges.”
Lenora Lapidus, director of the ACLU’s Women’s Rights Project, said, “Employers and courts nationwide still aren’t getting the message that the same temporary accommodations provided to injured workers must be provided to pregnant workers. The Supreme Court must make it clear that this type of discrimination is unlawful and that no woman should have to choose between her job and a healthy pregnancy.”
For the pro-life organizations, however, the case certainly has an abortion component.
Ovide Lamontagne, AUL’s general counsel, said it is important to understand “the policy behind the Pregnancy Discrimination Act isn’t just the workplace but it’s also a public statement to support women so they make the decision to keep their children, not to have an abortion.”
“If women aren’t given the kind of protection in the workplace that the Pregnancy Discrimination Act gives them, they’re more likely to feel like they have no other choice in order to keep their jobs, in order to preserve their economic status than to seek an abortion,” said Lamontagne, who attended the oral arguments.
The question of disparate treatment of Young as compared to other UPS workers with physical limitations comprised much of the discussion by justices and lawyers during the oral arguments.
After she became pregnant, Young, a delivery driver in Maryland, provided UPS with notes from a doctor and mid-wife saying she should not lift more than 20 pounds. A manager told Young this would prevent her from performing the basic actions of her job for UPS, which had a 70-pound lifting requirement. The manager also said Young was ineligible for light-duty work.
As opposed to its policy for pregnant employees, UPS provided light-duty work to workers injured on the job or disabled as well as those who lost their commercial drivers’ licenses from the Department of Transportation.
Caitlin Halligan, a New York City lawyer representing UPS, told the justices there is “no dispute at all” that UPS did not provide accommodations to people with off-the-job injuries. Samuel Bagenstos, a University of Michigan law professor representing Young, said, however, there are examples on record “of people with offthejob injuries or illnesses who were DOT decertified who were given accommodations, and not just accommodations that remove them from driving but also remove them from heavy lifting. That’s a factual dispute that has to go to trial.”
The case did not go to trial in federal court. Instead, a judge ruled for UPS in a summary judgment. A three-judge panel of the Fourth Circuit Court of Appeals in Richmond, Va., unanimously upheld the lower court’s decision, ruling that UPS had devised “a pregnancy-blind policy.”
The portion of the PDA discussed the most in oral arguments says, “[W]omen affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes … as other persons not so affected but similar in their ability or inability to work.”
The law, Bagenstos told the justices, says, “[E]mployers have to treat pregnancy-related conditions as favorably as they treat non-pregnancy-related conditions.”
The text is saying to an employer, Bagenstos said, “Don’t consider whether this person is affected by pregnancy or not so affected. That’s not the basis on which you can compare this employee to other employees. Instead, compare this employee based on ability to work.”
The Department of Justice also argued on behalf of Young. Donald Verrilli, solicitor general, said the point of the law “is to reduce the number of women who are driven from the workforce or forced to go months without an income as a result of becoming pregnant. … [Employers] can’t draw distinctions that treat pregnancy-related medical conditions worse than other conditions with comparable effects on ability to work.”
Associate Justices Elena Kagan and Ruth Bader Ginsburg challenged Halligan’s arguments for UPS.
PDA “was supposed to be about removing stereotypes of pregnant women as marginal workers,” Kagan said. “It was supposed to be about ensuring that they wouldn’t be unfairly excluded from the workplace. And what you are saying is that there’s a policy that accommodates some workers, but puts all pregnant women on one side of the line. And what you are further saying is that the employer doesn’t even have to justify” such a policy.
AUL’s Lamontagne was hopeful about Young’s chances of winning after observing the arguments. He thought the justices’ questions and attitude toward Bagenstos were “much more positive and favorable in my assessment than they were towards UPS’ lawyer. In this case, I believe the justices were favorably disposed to construing the law in support of Ms. Young’s claim, and it would only make sense to do that.”
Because of the factual dispute, the high court could remand the case to the federal court for a trial, Lamontagne told BP, but he thinks the justices may simply rule in Young’s favor.
UPS has announced it will put into effect Jan. 1 a more favorable policy for pregnant employees.
Among pro-life organizations joining the ERLC and Bethany on a brief written for the high court by AUL staff and other lawyers were the American Association of Pro-life Obstetricians and Gynecologists, Christian Legal Society, Concerned Women for America, Democrats for Life of America, Feminists for Nonviolent Choices, Heartbeat International, March for Life Education and Defense Fund, National Association of Evangelicals, Students for Life of America and Susan B. Anthony List.
An opinion in the case, Young v. UPS, is expected to be announced before the court adjourns early next summer.
— by Tom Strode | BP